## Facts

- Dale S. Horn served in the U.S. Army from October 1, 1970, to November 24, 1970.
- His induction examination noted no hip condition or lower-extremity defect and found him fit for service.
- Within weeks of basic training, Horn developed left-hip pain.
- Army physicians diagnosed Legg-Calvé-Perthes disease and initiated a Medical Evaluation Board (MEB).
- The MEB used a preprinted form with checked boxes indicating the condition existed prior to service and was not aggravated by active duty, without providing supporting medical reasoning; it also stated Horn was medically fit for retention under then-current standards while recommending separation for convenience of the government.
- Years later, Horn sought VA service connection for a left-hip disorder.
- VA denied the claim, and the Board of Veterans’ Appeals affirmed, finding the presumption of soundness applied but was rebutted by clear and unmistakable evidence of preexistence and no aggravation, relying heavily on the MEB’s unexplained “not aggravated” checkbox entry.
- Horn appealed to the United States Court of Appeals for Veterans Claims.

## Issues

1. Whether the presumption of soundness under 38 U.S.C. § 1111 applied given a normal entrance examination as to the hips.
2. Whether an MEB report containing only an unexplained checkbox indicating “not aggravated” can constitute clear and unmistakable evidence sufficient to rebut the “no aggravation” prong of § 1111.

## Decision

- The court held the presumption of soundness attached because the entrance examination noted no hip defect.
- The court held that, to rebut § 1111, VA bears the burden to produce clear and unmistakable evidence of both preexistence and lack of in-service aggravation.
- The court held that an unexplained MEB checkbox stating “not aggravated,” without rationale or analysis, is legally insufficient to meet the clear and unmistakable evidence standard on lack of aggravation.
- The court reversed the Board’s finding that the aggravation prong had been rebutted and remanded for further proceedings consistent with its opinion.

## Legal Principles

- When § 1111 presumption of soundness attaches, VA must prove by clear and unmistakable evidence both (1) that the disability preexisted service and (2) that it was not aggravated by service.
- “Clear and unmistakable evidence” means evidence that is undebatable and cannot be misinterpreted or misunderstood.
- Under § 1111, the burden on aggravation does not shift to the claimant; VA may not require the claimant to first show an in-service increase in disability to trigger the government’s burden.
- A conclusory medical notation of “no aggravation” that lacks supporting explanation (including a check-the-box entry) cannot satisfy VA’s clear and unmistakable evidence burden on the no-aggravation prong.
- Where the evidence relied upon to rebut the presumption is plainly insufficient as a matter of law, reversal of the rebuttal finding may be warranted rather than a remand to develop additional rebuttal evidence.

## Conclusion

The court required VA, when an entrance examination is normal, to carry an undebatable-evidence burden on both preexistence and no aggravation under § 1111, and held that a bare MEB checkbox asserting “not aggravated” cannot rebut the presumption of soundness on the aggravation prong.


Horn v. Shinseki, 25 Vet. App. 231 (2012)